New case before Trump judge could result in the prohibition of medication abortion

The Alliance Defending Freedom (ADF)—representing four Texas doctors and four anti-abortion groups—sued the FDA on Friday seeking to reverse the agency’s approval of mifepristone, the drug used in medication abortions.

Mifepristone

Mifepristone was first approved for early nonsurgical abortion by the FDA in 2000. Currently, it is commonly used for abortions up to 10 weeks of pregnancy in combination with a second medicine called misoprostol. The mifepristone stops the pregnancy from progressing and the misoprostol causes cramping and bleeding to empty the uterus.

Over half of all abortions performed in the U.S. are done with mifepristone, reflecting the evidence-based confidence that physicians have in the drug. The rate of major complications with mifepristone for medication abortion was 0.31 per 100 abortions—lower than the hospitalization rate for Tyenol and Viagra.

Alliance Defending Freedom

Alliance Defending Freedom is a conservative legal advocacy group that advocates for a Christian national identity, primarily through curtailing LGBTQ+ rights and women’s rights. The group brought the 2014 Supreme Case Burwell v. Hobby Lobby Stores in which the majority ruled that privately-held companies are exempt from the Affordable Care Act’s requirement to cover birth control for female employees. More recently, ADL claimed responsibility for the Mississippi ban on abortion after 15 weeks of pregnancy, ultimately leading to the Supreme Court overturning Roe v. Wade in Dobbs v. Jackson Women’s Health Organization.

In January 2018, attorneys with the Alliance Defending Freedom outlined a plan to “eradicate Roe” that is now coming to fruition. Speaking at the Evangelicals for Life conference, ADF senior counsel Denise Burke announced that just that week, state lawmakers in Mississippi had introduced the nation’s first-ever 15-week abortion ban. Based on ADF’s model legislation, the bill was designed to provoke a challenge from abortion rights groups that, ADF hoped, would make its way to the US Court of Appeals for the Fifth Circuit, and then on to the Supreme Court.

“We’re kind of basically baiting them; come on, fight us on turf that we have already set up and established,” Burke said, according to audio provided by Peter Montgomery of Right Wing Watch, who reported on the panel at the time. “Once we get these first-trimester limitations in place, we’re going to go for a complete ban on abortion, except to save the life of the mother.”

Lawsuit

The crux of the ADL’s lawsuit is that the FDA exceeded its authority when it approved mifepristone and, thus, the drug’s approval should be undone.

The only way the FDA could have approved chemical abortion drugs was to use its accelerated drug approval authority, necessitating the FDA to call pregnancy an “illness” and argue that these dangerous drugs provide a “meaningful therapeutic benefit” over existing treatments.

But pregnancy is not an illness, nor do chemical abortion drugs provide a therapeutic benefit over surgical abortion. In asserting these transparently false conclusions, the FDA exceeded its regulatory authority to approve the drugs…

After two decades of engaging the FDA to no avail, Plaintiffs now ask this Court to do what the FDA was and is legally required to do: protect women and girls by holding unlawful, setting aside, and vacating the FDA’s actions to approve chemical abortion drugs and eviscerate crucial safeguards for those who undergo this dangerous drug regimen.

Judge Kacsmaryk

The ADL brought the lawsuit in Amarillo, Texas. As Steve Vladeck pointed out, by filing the case in this district, the plaintiffs ensured they’d be heard by Judge Matthew Kacsmaryk: an anti-abortion Trump judge with no reservations about issuing a nationwide order.

Planned Parenthood warned of the dangers of confirming Kacsmaryk when he was nominated to be a federal judge in 2019: “President Trump’s nominee to the Northern District of Texas, Matthew Kacsmaryk, has extreme views on reproductive health and rights and LGBTQ rights. The role of a federal judge is to be impartial and follow legal precedents, such as well-established precedents affirming the right to safe, legal abortion. Kacsmaryk’s record, which includes disputing the legitimacy of Roe v. Wade and a strong stance against nondiscrimination protections for LGBTQ people, leaves little room for optimism that he will rule fairly on the issues that would come before him as a federal judge.”

Kacsmaryk has since issued nationwide injunctions that blocked Biden’s immigration policies and rolled back LGBTQ+ rights.